Subhash Kakade, J.Appellant Sunita Bai has filed this appeal under Section 374 of Criminal Procedure Code, 1973 being aggrieved by the judgment dated 25.10.1996 passed by the learned First Additional Sessions Judge to the Sessions Judge Jabalpur, in Session Trial No. 344/1993, whereby the appellant was convicted under Section 364 of IPC and awarded a punishment of rigorous imprisonment of three years and fine of Rs.2,000/- , in default of payment of fine, further to suffer nine months rigorous imprisonment.

2 (i) Briefly stated prosecution case is that appellant Sunita is wife of Raj Kumar Sen who is brother of complainant Vimla Bai. Complainant Vimla Bai and his family were living at Punjab Bank Colony, Jabalpur in house of one Shyam Sundar. To be relative of Vimla Bai, the appellant used to visit house of the complainant. On the date of incident i.e. 11.02.1993 at about 2 PM, the appellant came to house of Vimla Bai and was playing with complainants son Ranjeet and offered him biscuits also. During this period, somebody called the appellant from the outside. The appellant requested the complainant to Ranjeet be accompanied with her, because she is going to meet her friend. Complainant Vimla Bai denied, even then the appellant requested that she will be back within five minutes and took away Ranjeet.

(ii) Complainant waited for 3-4 hours and when Ranjeet did not return back till 4 PM, then she went to the house of the appellant and inquired about Ranjeet. The appellant replied that she had left Ranjeet at the gate of complainant house before Priti. When the matter inquired with Priti, she blatantly refused saying that the appellant is telling lie. To inquire the matter, the complainant and his companion visited the house situated at Vijay Nagar also, where the appellant claimed that her friend is residing. On reaching there, it was informed by the neighbours that since one and half years nobody is residing in this house. At about 9 AM Achchhelal with neighbours went to police station Kotwali to report the matter. At about 11 PM in the night, this fact came to knowledge that one boy is received in police station Garha, so the complainant and others went to the police station Garha, where they found Ranjeet having injuries on his hands and eyes. This fact was also come to knowledge that Ranjeet was received from Sharda Hills Madan Mahal in a cave and his hands were tightened by the rope, one stone was also putting upon him. Silver ring was not found in Ranjeets finger. It is further alleged that appellant handed over Ranjeet to juvenile offender Rajkumar and his friend Lakhan Singh to murder Ranjeet and through his body in forest. Juvenile offender Rajkumar and Lakhan were arrested and upon their statements under Section 27 of Evidence Act ring recovered.

(iii) On the same evening Achchhelal reported the matter at police station stating the above facts. Accordingly Gum Insan report 4/93 was registered at Kotwali, Jabalpur. Ranjeet found in cave as mentioned above situated at hill. After investigation the charge-sheet was submitted and the trial started in the learned Trial Court.

3. The learned trial Court on the basis of evidence available on record framed charge against the appellant punishable under Section 364 and 369 of Indian Penal Code, who abjured her guilt, therefore, she was put to trial.

4. The prosecution examined ten witnesses and produced documents Ex.P-1 to Ex.P-10A. Dr. A.K. Yadu (CW/1) examined as court witness.

5. During statement under Section 313 of Cr.P.C. the appellant denied all the evidence put forth against her and pleaded her innocence on the ground that she was falsely implicated on conspiracy of Vimla Bai and her husband. No witnesses were examined by the defense.

6. The learned trial Court after appreciating the evidence available on record held the appellant guilty under Section 364 of Indian Penal Code and convicted and sentenced her as mentioned herein above, against which, this appeal. Though, the learned trial Court acquitted the appellant from the charges punishable under Section 369 of Indian Penal Code, against which respondent/State does not prefer an appeal.

7. Shri V.K. Rishi, learned counsel appearing for the appellant, has submitted that the learned Trial Court has erred in holding that prosecution successfully proved the offence punishable under Section 364 of the IPC against the appellant. Intention or motive of the appellant is not proved for offence and also not proved beyond doubt chain of circumstances. It is further submitted that Vimla Bai is the real sister of husband of the appellant, she filed false complaint against the appellant with the convenience of her husband, therefore, impugned judgment be set aside and the applicant be acquitted.

8. Per contra, Shri Sudeep Deb, learned Panel Lawyer appearing for the State has opposed the appeal and submitted that appellant has rightly been convicted believing the testimony of Vimla Bai and other prosecution witnesses. The finding, so recorded by the learned trial Court, does not call for any interference by this Court, thus, this appeal is liable to be dismissed.

9. I have considered the rival submissions made by learned counsel for the parties, perused the impugned judgment and entire available record carefully.

10. It has come in the evidence of star witness Vimla Bai (PW/1) that the applicant used to come to her home being the relative, Bhabhi (sister-in-law) to her. She further narrated that on the date of incident in the afternoon Bhabhi Sunita came to her house, after inquiry she replied that she is going to meet her friend Sujatas house. It is also stated by Vimla Bai (PW/1) that for some time her son Ranjeet was playing with the appellant at that time she requested her that Ranjeet be accompanied with her to visit to her friends house and after 5 minutes she will return back. At that time Priti also brought the biscuits as per instruction of the appellant and she also offered biscuit to Ranjeet. The appellant again requested to accompany Ranjeet with her, though she denied, but without any consent she took away Ranjeet with her to her friends house.

11. In above facts and circumstances Vimla Bai might not have suspected any foul play. She further stated that when upto 5 Oclock the appellant did not return back with her son Ranjeet, therefore, she informed her husband. Search was made by Vimla Bai and her husband Achchhelal yielded no result. For this purpose the couple also went to house of appellant and inquired about Ranjeet at that time appellant replied that she had left Ranjeet in front of gate of complainants house in presence of Priti. Priti refused saying that the appellant is telling lie. After reply of Priti, all these three along with appellant visited the house of appellants friend. On reaching there it was informed by the neighbours that since 1 and 1/2 years nobody is residing in this house. Thereafter at about 9:00 p.m. Achchhelal went to the police station and lodged Gum Insan report.

12. Vimla Bai (PW/1) stood firm in her cross-examination and nothing could be elicited by the defence which may discredit her testimony. I do not find any earthly reason for this witness to depose falsely against the appellant unequivocally and categorically stated about the genuineness of occurrence, development and recovery of her son Ranjeet.

13. During court witness Priti (PW/2) blatantly refused saying that the appellant is telling lie.

14. Achchhelal (PW/3), father of victim Ranjeet and also informant had corroborated the evidence of his wife Vimla Bai stating that when the appellant did not return back with Ranjeet to the house, he inquired from the appellant about the whereabouts of his son. He further stated that he also inquired with Priti and went to Vijay Nagar along with appellant and others, but found that nobody was residing in that house.

15. Shyam Sundar Gupta (PW/4) and his wife Geetabai (PW/6) also supported the statements of couple Vimla Bai (PW/1) and Achchhelal (PW/3). On a close scrutiny of prosecution witnesses on account of Priti (PW/2), Achchhelal (PW/3), Shyam Sundar Gupta (PW/4) and Geetabai (PW/6), I do not find any infirmity whatsoever in their evidence they are truthful witness and there evidence has rightly been relied upon by the learned trial court.

16. The prosecution evidence is consistent that on 11.02.1993 in the afternoon the appellant took away Ranjeet from custody of his parents.

17. The evidence of Bansilal (PW/5) is to the effect that when he was sitting near the temple on the hill he heard cry of a child from the cave so he went there with others and found that one child was crying in the cave, one cloth was robed in her neck and stone was also found on chest of the boy. In this situation, Bansilal (PW/5) brought the boy at the Police Station Garha where Sub Inspector Shri R.A. Shukla (PW-7/10) was present who lodged Rojmancha report Ex.P-10 and informed the police control room. Inspector Shri A.K. Singh (PW/11) also supported reporting of Ex.P-10.

18. Constable Hotilal brought Ranjeet at hospital where he was examined by Dr. A.K. Yadu (CW/1) who found three injuries on the person of Ranjeet vide his M.L.C. Report (Ex.P-9). Geetabai (PW/6) also stated that when she went to the Police Station Garha on the telephonic information that one child is found there, it is also learnt to her that two boys were brought this child into cave for sacrifice (religious offering). Sub Inspector Shri Jagannath Rajput (PW/8) completed the investigation and arrested the applicant with juveniles Rajkumar and Lakhan Singh. In the above facts and circumstances, the appellant Sunita Bai is rightly convicted by the learned Trial Court for the offence punishable under Section 364 of the IPC.

19. The next question crops up for consideration in this appeal is looking to nature of the offence proved against the appellant Sunita Bai, punishment for it.

20. There is no criminal antecedent of the appellant. Since her arrest on 12.02.1993 to 18.03.1993 she was under custody for 36 days. Again she was under custody from date of judgment i.e. from 25.10.1996 to 29.11.1996 for 33 days when she was released on bail by order of this Court. At the time of her arrest on dated 12.02.1993 appellant Sunita Bai was 25 years of age and facing trial since last 20 years. It can be very well gathered from the evidence that the appellant had no intention of causing grave hurt or murder of Ranjeet.

21. In view of the aforesaid, I am of the considered opinion that substantive sentence should be confined to the period already undergone in respect of the offence punishable under Section 364 of the I.P.C. Fine amount Rs.2000/- has already been deposited.

22. Accordingly, this appeal is partly allowed to the extent indicated above.